09 Sep 13 | Digital Freedom, News and features, Politics and Society, United States
(Photo: David von Blohn / Demotix)
It seems you can’t step away from the computer for more than a few hours these days without a story revealing previously secret information about the National Security Agency (NSA) setting the internet aflame. The scandal has sparked an investigative journalism renaissance with virtually every major news organisation in the country—not just the keepers of the Snowden files—getting in on the act.
Several stories of critical significance broke in the last two weeks. First, the Wall Street Journal reported that the NSA’s surveillance system, “has the capacity to reach roughly 75% of all U.S. internet traffic in the hunt for foreign intelligence, including a wide array of communications by foreigners and Americans.” The Journal detailed the NSA’s direct access to telecommunications’ fiber optic cables around the country and their extraordinary reach into many corners of the web.
The next day, the administration finally released the 2011 FISA court opinion ruling some NSA surveillance unconstitutional, making front-page news around the country. The Electronic Frontier Foundation, the organization for which I work, has been suing the Justice Department for its release for over a year. The ruling showed the NSA had vacuumed up more than a 150,000 Americans’ emails, only alerting the court to a collection method that had been in place for three years. The court also accused the NSA of “material misrepresentation regarding the scope of a major collection program” on two other occasions.
Until two weeks ago, the administration had stuck to the talking point that all the privacy violations were unintentional. That was already cold comfort to Americans, as the Washington Post had previously reported, based on Snowden documents, that the NSA has been committing thousands of privacy violations, however unintentional, affecting untold number of people per year. And the numbers seem to be increasing.
Soon after the FISA court opinion was released, Bloomberg News revealed that a still-classified NSA inspector general’s report documented “approximately a dozen” willful privacy over the last decade by the NSA. This contradicted many previous statements by government officials, including NSA chief Keith Alexander, who said “no one has wilfully or knowingly disobeyed the law or tried to invade your civil liberties or privacy” at a speech on August 8.
The Wall Street Journal followed up, detailing how many of these violations consisted of analysts following former spouses or partners (nicknamed “LOVEINT”). The Journal explained that most of the violations were self-reported. How many went unreported we will likely never know.
Couple this with the fact that NBC News reported how Edward Snowden was able to browse the NSA networks for months without detection, and you have an agency which claims it has strict internal oversight procedures in place, but seems to have only one real mechanism for enforcement: self policing.
Amazingly, all of these stories have come since President Obama was forced to address the issue at a press conference just three and a half weeks ago in response to the first wave of stories published by the Guardian and Washington Post. At that point, the sea change in public opinion about civil liberties and privacy had become clear and Congressmen in both parties had been pressuring the White House for weeks. Obama promised more transparency to programs (it’s important to remember he also promised more transparency six years ago when he was first running for president), but there were no concrete proposals for reining in the out-of-control powers of the NSA. He did not even mention the two major stories of the day, one in the Guardian, and the other in the New York Times. Obama did say this, however:
What I’m going to be pushing the [intelligence community] to do is rather than have a trunk come out here and leg come out there and a tail come out there, let’s just put the whole elephant out there so people know exactly what they’re looking at. Let’s examine what is working, what’s not, are there additional protections that can be put in place, and let’s move forward.”
While the full elephant is the only thing that will satisfy the public at this point, disturbingly, Sens. Ron Wyden and Mark Udall, the lone NSA critics on the Senate intelligence committee, cryptically said in a press release after Obama’s press conference that we’ve only learned “just the tip of a larger iceberg.”
Congress is currently on August recess, an annual break where members return to their home districts to hear from their constituents. We can expect some sort of action when they return. Eighteen bills have already been introduced, with many more on their way, and as Politico reported, members from both parties are listening to people at town halls voice their concerns about NSA surveillance, “a sign that fears about the ultra-secret National Security Agency have spread beyond the Beltway as lawmakers embark on their annual town-hall tours.”
Meanwhile, the reporting will only continue, as the Guardian is now sharing some of the Snowden documents with the New York Times and ProPublica after GCHQ disturbingly entered the Guardian offices in London and oversaw the destruction of a copy of the Snowden files.
Early on, the administration and its defenders may have hoped the story would disappear with the next news cycle. It won’t. The NSA scandal is destined to a prime issue in the fall Congressional session, carrying into next year’s midterm elections. The administration’s attempts to calm the public with transparency-after-the-fact PR measures won’t change the narrative.
What we want to see is this headline: “Obama reins in NSA surveillance authority.”
This article was originally published on 9 Sept, 2013 at indexoncensorship.org
29 Aug 13 | News and features
As global power starts to shift both South and East, and the G20 overshadows the G8, will freedom of speech and broader human rights still receive support around the summit tables?
While the BRICS – Brazil Russia, India, China, and South Africa – range from active democracies to repressive authoritarian states, none are keen to take lectures from western countries on free speech.
And whistleblower Edward Snowden’s still unfolding NSA and GCHQ revelations are surely weakening the US and UK’s credibility in promoting rights internationally. Mass surveillance of digital communications undermines free speech online: monitored conversation is not free, as anyone from Iran or China can attest.
Nor are the democratic BRICS yet taking any international lead on free speech and other rights.
If free speech is to be actively defended in the multipolar order, both the emerging democratic powers and the older western powers must stand up, however imperfectly, for rights, at the UN, the G20 or in bilateral dialogues, and not let economic interest, security priorities, and diplomatic convenience hold sway.
Some European diplomats confidently see the EU, US and Japan as the prime defenders of free speech, while Brazil, India and South Africa are “swing” states to bring on side against China and Russia. But from digital to media freedom to transparency and corruption, the picture is more blurred.
The Snowden revelations risk seriously weakening the US’s credibility in pushing for digital freedom and an open internet against a joint Russia-China quest for top down global internet control. The geopolitics of internet governance were exposed at an international telecommunications summit in Dubai last December – Russia and China pulling almost 90 countries including Brazil and South Africa behind them in a test vote. India wobbled before joining the US, EU and Japan.
But efforts to get democratic BRICs to support an open internet may now falter. ‘Do as we say, not as we do’ is never the most convincing of arguments.
Digital freedom may retreat further if the NSA scandal prompts a more rapid fragmentation of the internet as some fear. While Iran and China already seek to segment their national internets, if the EU and others respond with moves to insulate their networks more from the US then fragmentation may gather speed.
Yet direct censorship of the internet – imposing blocks and filters – is much more common in authoritarian regimes – with China and its great firewall targeting free speech extensively in ways not seen in the multipolar democracies.
But there are some troubling trends. Both the UK and India criminalise ‘grossly offensive’ comment on social media – with arrests for Facebook posts and tweets in both countries . And Brazil and India often top the lists in Google’s regular transparency reports on takedown requests for online content.
On press freedom, the picture for western democracies is fairly positive: they are ahead of the democratic BRICS who are, unsurprisingly ahead of Russia then China. But it’s a varied picture – Germany and the US are substantially ahead of the UK and France, with South Africa coming in just ahead of Japan according to Reporters without Borders press freedom index – and then Brazil and India trail behind. And such indicators cannot reflect the granular reality of Obama’s prosecution of media sources, or the UK debate on statutory press regulation.
At the international level, western countries are often seen as readier to challenge individual countries’ human rights records, than India, Brazil and South Africa. Yet Brazil and India voted with the US criticising Sri Lanka’s record earlier this year while Japan abstained. And the EU and US can hesitate too in the face of economic interests not least in dealings with China.
Transparency and corruption is where western countries do best. The US, Japan, Germany, France and the UK all score fairly high up on Transparency International’s annual ranking, while Brazil and South Africa languish in the middle, India is behind China, and Russia scores even below China (and India) too. But the US and UK’s transparency record will surely be reassessed given Snowden’s leaks.
With this mixed record of the democratic powers, will we hear less about free speech and human rights in the multipolar, digital world? At least, with whatever flaws and double standards, the majority of the G20 are democracies with robust debates on free speech at home. But the revelations of mass digital surveillance now cast a long shadow.
Perhaps one more positive outcome of the US’s stumbling over mass surveillance will be if it gives India, Brazil and South Africa the confidence to speak out strongly on the international stage including holding western players more to account on free speech. If so the multipolar democracies would then have more, not less, credibility in pointing the finger at authoritarian regimes.
Read more about the multipolar challenge to free expression in the current issue of Index on Censorship magazine
28 Aug 13 | Uncategorized
In early August, the topic led to a sequence of accusations between two of the most influential German media outlets, the Bild Zeitung, a conservative daily tabloid newspaper, and Der Spiegel, a left-leaning weekly magazine. Both publications have the highest circulation in their respective sector in Germany. Firing first, Bild accused Der Spiegel of spreading “nonsense saying that the German population is standing under “total surveillance.” Rather than total surveillance, writes the Bild Zeitung, the German intelligence service BND gave the NSA only information on one specific person of German heritage, an abducted former Spiegel journalist. Firing back, Der Spiegel claims the intentional omission of the case from its reporting was based on the journalistic principle not to endanger abductees through reporting – an unwritten journalistic law the Bild seemed to be willing to breach.
This publicly fought battle indicates the juxtaposition of opinions on the surveillance affair between left-leaning and conservative media. It is also a window into the diverging public opinion on the matter.
With the upcoming September federal elections in mind, the NSA affair has been widely discussed in German media with sentiment raging from understanding to harsh criticism. Although opinion polls show that the majority of the German population is disappointed with the German government’s reaction, many view the surveillance programs as a benevolent necessity.
The reasons for the strong interest of Germany’s media in this issue stem from the country’s history and its involvement in the current affair. The state surveillance by the Stasi, the secret police in East Germany during the Cold War, has led to a strong public opinion against an Orwellian state. Recent disclosures, such as the wiretapping of European embassies in Brussels and Washington, therefore, led to first outcries.
Further, with the NSA recording up to 60 million German metadata connections per day, Germany has been the European country under closest scrutiny by the US and its allies. What is more, according to the whistle-blower Edward Snowden, the German intelligence, and maybe even the German authorities as some journalists assume, have had knowledge of the NSA surveillance system for many years.
“German authorities are in bed with the NSA,” Snowden said in an interview with Der Spiegel.
This aspect is taken up and heavily criticized by Germany’s left-leaning media. According to Der Spiegel, the muted reaction of the current German chancellery demonstrates its connivance, while also showing its inability to prevail against the US. The distorted notion of security since 9/11 and the disruption of the fundamental pillars of the constitutional state – particularly distinctive in the US – are further focal points for the left-oriented media.
The USA has “fallen ill” since the attacks on the World Trade Center, writes Klaus Brinkbäumer, deputy editor of Der Spiegel. According to him, the US is willing to breach every international law if it serves its national security and, therefore, the War on Terror. In his opinion, the US has gone off the democratic track into the abysses of unlawfulness.
The “super-fundamental right of security”, as described by Germany’s Interior Minister Hans-Peter Friedrich, “sneaked into legal and domestic policy discussions and outweighs all other fundamental rights,” Heribert Prantl, head of the domestic division of the Süddeutsche Zeitung, wrote in an editorial.
In contrast, the conservative Bild Zeitung justifies the intelligence services’ actions against the privacy of the public. They happened “for the benefit of the German population,” reads an editorial by Hugo Müller-Vogg.
“In times of global terror, more surveillance than we prefer becomes necessary,” writes Bild editor Daniel Killy.
Bild’s headline “Who wants to thwart terror must be informed earlier,” illustrates the propagated notion: the necessity of these surveillance programs for the greater good. While the Bild Zeitung expresses gratefulness towards the US for helping to secure the German population, it also agrees with the left-leaning media on the wrongness of the US wiretapping of European authorities.
As for Snowden, his depiction in German media also diverged along political lines. For the Bild Zeitung “Snowden is no hero.” His disclosure of practices of Western intelligence services is alleged to have aided the “enemy,” says Bild. From now on, argues the paper, it will become increasingly difficult to track down terrorists.
Der Spiegel depicts Snowden as a person who helped to “broaden the understanding of the architecture of the so-called security system.” As a ‘thank-you’ for his deeds, that have already led to a long overdue public discussion about the daily state surveillance and its consequences, Der Spiegel suggests that states around the world should offer Snowden asylum.
The Süddeutsche Zeitung, which depicts Snowden as a “classical political refugee,” goes even further by proposing Germany should give Snowden a temporary residence permit in order to enable him to fight for asylum on German soil.
“Edward Snowden (…) served the constitutional democracy with the disclosure of US intelligence practices; he started a discussion that can save the constitutional state in destroying itself; he revealed the misuse of power and the fundamental rights of European citizens and the fundamental rights of their elected representatives in the EU boards,” Heribert Prantl of Süddeutsche Zeitung writes in an op-ed.
However, the majority of the German public disagrees with these propositions. According to a recent opinion poll by YouGov, although 61 per cent of the German public view the disclosures as a positive action, 58 per cent would vote against an asylum for Snowden in Germany. While more than two-thirds of those polled are disappointed by the reaction of the German chancellery on the matter, 40 per cent approve state monitoring of private communication for security reasons.
But, extensive communication surveillance can have wide-ranged repercussions for the public, German media warn.
“The internet has become the life-world of many Germans,” writes Johannes Boie from the Süddeutsche Zeitung, “to monitor it, means to monitor whole lives.”
22 Aug 13 | Counter Terrorism, News and features, Politics and Society
The examination and detention of David Miranda on 18 August at Heathrow Airport has brought Schedule 7 of the Terrorism Act 2000 in to sharp focus. Its purpose is to deter terrorism, an aim that it strives to achieve through facilitating the stop, search and examination (under compulsion) of individuals. I say individuals rather than suspects as there does not need to be any reasonable suspicion that any terrorist offence has been or will be committed. That said the selection of individuals is to be based on “informed considerations” (such as intelligence), should not be used arbritrarily and must only be applied to determine those who may be concerned in acts of terrorism. The power only applies to those believed to be entering or departing the United Kingdom and this belief must be justifiable in the individual circumstances.
Be in no doubt that, whatever the expressed safeguards as to informed selection and justifiable beliefs, Schedule 7 is draconian. It was meant to be. It was aimed at preventing terrorism through exceptional legislative means. It exceptionally permits individuals to be stopped, questioned under threat of prosecution if they refuse to answer and their possessions seized (under threat of prosecution) should they fail to comply. It turns the accepted approach to criminal suspects on its head; the need to demonstrate a prior reasonable suspicion of offending is removed and the protection of silence is pierced by a compulsion to answer all questions. It is a blunt but arguably necessary tool in the fight against terror. The danger is that it becomes a blunt tool to batter down doors unconnected with terrorism. It cannot and should not be applied as a means to achieve any other objective.
In order to obtain confidential or sensitive information such as journalistic content the police must ordinarily undergo a route that involves obtaining a production order. To obtain such an order they must essentially satisfy a court that the order is justified and the protection afforded to the material can be overcome. Evidently Schedule 7 was never meant to take aim at journalism but, given the powers of compelled answers and seizure of material, one can instantly appreciate the fast lane route it would provide to obtaining information for extraneous intelligence purposes. That would be an abuse of the Act, a likely breach of Article 10 (freedom of expression) and unlawful on a number of levels but how can we safeguard against it? “Quis custodiet ipsos custodies” [who will guard the Guardians] wrote Juvenal. Rather apt.
Dan Hyde is a partner at HowardKennedyFsi LLP
This article was originally published on 22 Aug, 2013 at indexoncensorship.org
